V. Rama Krishna vs Andhra Bank, Hyd. and others

This appeal is preferred, being aggrieved by the judgement and decree dated 15-4-1991 passed by the learned II Additional District Judge, Visakhapatnam, in AS No.52 of 1989. By the impugned judgement and decree, the lower appellate Court set aside the judgement and decree dated 29-01-1988 of the learned IV Additional District Munsif, Visakhapatnam passed in OS No.324 of 1985 and consequently the lower appellate Court dismissed the plaintiffs suit.

Learned Counsel for the appellant strenuously contended that the judgement and decree of the lower appellate Court are unsustainable. He submitted that the lower appellate Court is in error in holding that the suit filed by the plaintiff was not maintainable. The lower appellate Court has not given reasons in dismissing the plaintiff''s suit. He further submitted that so far as the appellant-plaintiff is concerned, there is a concurrent finding of both the Courts below that the appellant was senior to defendant Nos.5 to 12 and 14 to 24; and as such appellate Court could not have reversed the judgement and decree of the trial Court. He submitted that as held by the trial Court no material or evidence of the proceedings of the Departmental Promotion Board have been produced by the bank to show as to why the plaintiff could not be promoted as on the date the defendant Nos.2 to 24 were promoted. In fact, the trial Court drew an adverse inference for not producing such material. He submitted that the lower appellate Court has simply reversed the judgement of the trial Court on the ground that no relief, as prayed for by the plaintiff, could be granted. Overlooking the position of law that the jurisdiction of the Civil Court u/s 9 of the CPC (for short ''the CPC'') is available in all the suits, except where such suit is barred by specific enactment either expressly or impliedly. In the instant case, no such law has been referred to so as to exclude the jurisdiction of civil Court u/s 9 of the CPC, except stating that the contract matters between the employer and employee cannot be enforced in the Court of law. This approach is totally erroneous. Hence the judgement and decree of the lower appellate Court are liable to be set aside.

On the other hand, learned Counsel appearing for the defendant-bank strenuously supported the judgement and decree of the lower appellate Court. He contended that the plaintiff himself has not produced necessary materials to show and demonstrate as to how he was entitled to be promoted as the Officer in MM-III grade as against defendant Nos.2 to 24. He further submitted that though, according to the findings by the Courts below that the plaintiff-appellant was senior to certain defendants, but the seniority alone would not be the sole factor for promotion to the next category. He stated that, admittedly, there were departmental proceedings against him and in view of those proceedings, the promotion of the appellant could be overlooked. He further submitted that, no doubt, the proceedings of the authority or the board which considered the cases of plaintiff and defendant Nos.2 to 24 for the purpose of promotion are not produced. But, as per the evidence of DW1, such authority did not recommend for promotion of the plaintiff keeping in view of his seniority and other service record and for the purpose of promotion, seniority is not the sole criteria. He further submitted that the petitioner has not challenged the fitment under the provisions of Andhra Bank (Officers'') Service Regulations, 1982 (for short ''the Regulations'') which have come into force with effect from 1-1-1983; and that without challenging the same, he could not have challenged the promotion of defendant Nos. 4 to 24. He also submitted, that having regard to the material now produced before the Court in pursuance of the directions of this Court on 17-6-1999 it would be clear that the petitioner was considered not fit for promotion in view of the pendency of the departmental proceedings on the basis of the charge sheets filed against him; and on the basis of one charge sheet, he was dismissed from service. But that order has been set aside by this Court in a writ petition. But his punishment regarding other charges is the subject-matter of another writ petition before this Court. In this view of the matter, he submitted, that the judgement and decree of the tower appellate Court in dismissing the plaintiffs suit do not call for any interference in this appeal and the appeal may be dismissed.

In order to appreciate the rival contentions, I think it appropriate to note down the facts of this case, briefly, as under: I would be referring to the parties as the plaintiff and defendants as per their ranking assigned in the trial Court.

The plaintiff filed a suit for declaration that plaintiff was entitled to the post of Middle Management Grade-Ill Office with effect from 5-8-1983 with all the attendant benefits in a rank over and above the defendants, on the ground that he was senior to the defendants. The plaintiff also prayed for a declaration that the selection process contemplated in the year 1985 by the first defendant in relation to the promotions of Officers from MM-II to MM-III as arbitrary and illegal. The plaintiff also prayed for mandatory injunction directing the first defendant to regularise the services of the plaintiff as MM-III with effect from 5-8-1983 with all the attendant benefits. The plaintiff also prayed for a decree of prohibitory injunction restraining the defendants 1 to 3 from proceeding with the selection process in pursuance of the communication dated 18-3-1985. In the plaint, it is alleged that the plaintiff was appointed on 13-5-1977 as Rural Credit Officer Grade-11 in Andhra Bank at Anakapally in Visakhapatnam Zone; and defendant Nos. 5 to 12 and 14 to 24 were appointed subsequent to the appointment of plaintiff and they have completed their probation on 13-5-1978. The plaintiff further contended that in the meanwhile Andhra Bank was taken over under the provisions of Banking Company (Acquisition and Transfer of undertaking) Act, 1980 on 15-4-1980, and Andhra Bank (Officers) Service Regulations, 1992, framed under that Act, came into force with effect from 1-1-1980 in which old Grade-II was equated to MM-II and Grade-I was equated to MM-III (herein-after referred to as MM-II and MM-III) with effect from 1-1-1980. He further alleged that the plaintiff was called for interview on 7-4-1985 for promotion as MM-III but no interview took place. But he found that his juniors, defendant Nos.5 to 12 and 14 to 24 were promoted as MM-III Officers with effect from 5-8-1983. There was also an interview on 7-5-1985, which he did not appear. But the said promotions of defendant Nos.5 to 12 and 14 to 24 were in violation of the Regulations. In those circumstances, the plaintiff made protest for such selection on 28-3-1985 itself. The plaintiff also contended that Regulation 17 of Regulations was too vague and uncertain and therefore it was bad in law. On the basis of these allegations, the plaintiff filed the present suit.

By filing written statement, the official defendant Nos. 1 to 3 have resisted the plaintiffs suit by denying the allegations. They contended that for the purpose of promotion, the seniority alone would not be a sole factor but there would be other factors like merit, aptitude for work and performance etc. They stated that in the month of April, 1983, as per the Regulations, the plaintiff, who was in Grade-II was fitted in MM-II on 15-4-1983 which was the cut off date according to the Central Government notification. But the plaintiff has not raised any objection regarding such fitment. In the written statement it was further stated that as per the Pillai Committee Report, an opportunity was given to the plaintiff to exercise his option either for new scale or old scale and the plaintiff has opted for new scale. Prior to 1983, the defendant bank had its own procedure and there was no prescribed procedure regarding the conduct of examination for promotion of Officers from one grade to another. The entire service records of the officers were placed before the committee constituted and on the basis of the recommendations of such committee, the officers were promoted. It is stated that in the year 1982, the promotions of defendant Nos.5 to 12 and 14 to 24 were given as per the recommendations of such committee and they have already taken charge. It is also further stated that plaintiff and (sic) defendant Nos.5 to 12 and 14 to 24 were seniors to plaintiff. Therefore, they were promoted as MM-III under the new scale in the month of August, 1983 and the plaintiff has been continued in MM-II. In the year 1985, the bank wanted to promote certain officers from MM-II to MM-III and for that purpose, the plaintiff was called for an interview, but he did not choose to appear the interview. There was an interim direction by the trial Court directing the bank to call the plaintiff for interview; and on 15-5-1985 the plaintiff was called for interview for promotion, but the plaintiff'' did not choose to attend the same. The defendants ultimately prayed for dismissal of the suit contending that the plaintiff cannot challenge the rules in force and he cannot object for implementation of the policy for promotion by the bank. They also stated that the plaintiff cannot challenge the validity of regulations in a suit. On the basis of these allegations, the defendant Nos.1 to 3 prayed for dismissal of the suit.

The defendant Nos.4 to 24 by remaining ex parte did not file written statement and later the plaintiff himself gave up the 12th defendant since he retired.

On the basis of the pleadings of the parties, the trial Court framed the following issues:

(i) Whether the plaintiff is entitled for declaration and mandatory injunction as prayed for?

(ii) Whether the plaintiff is entitled for declaration and consequential relief of injunction as prayed for?

(iii) To what relief?

In the trial Court, the plaintiff examined himself as PW1 and got marked certain documents vide Exs.A1 to A8; and on the part of the defendants, the Personal Officer of the first defendant-bank was examined as DW1 and got marked a document as Ex.B1.

The trial Court, on the appreciation of the entire evidence, held that the plaintiff was senior to defendant Nos.5 to 12 and 14 to 24 on the basis of the seniority list at Ex.A4. The trial Court drew an adverse inference against defendant Nos.1 to 3 for not producing the records pertaining to the committee, which promoted defendant Nos.4 to 24. Consequently held that the plaintiffs promotion as MM-III has illegally been denied by the bank and ultimately directed the first defendant-bank to regularise the services of the petitioner as MM-III with effect from 5-8-1983. However, the trial Court dismissed the suit regarding his prayer seeking promotion on the basis of the communication dated 18-3-1985.

This matter was argued before me for number of days. On the basis of the arguments of the learned Counsel on both sides and also on the basis of pleadings and evidence on record, I find that certain facts are clearly admitted. It is admitted that in terms of the Regulations, the plaintiff and defendant Nos.4 to 24 were given fitment in Grade-II, which was equated to MM-II under the Regulations. As per the concurrent findings recorded by the Courts below, on the basis of Ex.A4, it has now been held that the plaintiff is senior to defendant Nos.5 to 12 and 14 to 24. This finding has become final. It is also stated by the Bank that the case of the plaintiff for promotion was not considered in view of the recommendations of the Committee, which met in the month of August, 1982, in which, the cases of the defendant Nos.4 to 24 only were recommended for next promotion to MM-III and accordingly, the defendants have been promoted in the year 1983. The stand of the defendant Nos. 1 to 3 before me is that though the plaintiff was senior to defendant Nos.5 to 12 and 14 to 24, yet, the specific case as to why the case of the plaintiff was not considered for promotion from MM-II to MM-III is clearly stated in Paragraph Nos.9 and 10 of the written statement as under:

"9. Even as per the service rules, it is open to the bank not to follow service rules with regard to promotions for a prescribed period, and in this case, one year period i.e., for 1983 exemption was given to the bank by the Central Government that they follow their own procedure in the same sense procedure which was followed earlier regarding promotions. Prior to the implementation of these regulations there were no procedure prescribed regarding conducting of examinations or interviews for promotion of officers from one grade to another. The entire service record of the officers used to be placed before a committee constituted by the Board and decision was taken by the Board itself. In 1982 promotions were made and defendants 4 to 24 were promoted and at that time plaintiff was not considered fit for promotion. He had not made any issue out of that and that has become final. Having regard to the facts and circumstances of the case and merits of the individual persons respondents 4 to 24 were promoted in preference to the plaintiff. The promotions were implemented in 1982 itself and the persons who were promoted were given office orders regarding their promotions in August, 1982 itself and they had taken charge immediately. Scales of pay were also revised having regard to the grade to which they were promoted and they were given scales which they were entitled to. It is not correct to allege that the plaintiff was aware of the promotions only in 1984.

As on appointed date i.e., 1-1-1983 plaintiff and defendants 4 to 24 were fitted in MM-II and in view of the fact that they were seniors to the plaintiff so they were promoted to MM-III under the new scales in August, 1983 whereas the plaintiff continued to remain in MM-II."

From the written statement, as extracted above, it is clear that the plaintiffs case was not considered for promotion as per the recommendations of the Committee constituted by the Board in the year 1982 for the purpose of promotions, in which defendants 4 to 24 were promoted and plaintiff was not considered fit for promotion in Paragraph 10 of the written statement, though it was stated that defendant Nos.4 to 24 were seniors to plaintiff and, therefore, they were promoted to MM-III in the new scale in the month of August, 1983, but now the said statement turns out to be false. As held by both the Courts below on the basis of seniority list vide Ex.A4, the plaintiff was senior to defendant Nos.5 to 12 and 14 to 24.

Then the crucial question would be whether the plaintiffs seniority could have been overlooked or not? The simple reply of the defendant-bank is that the seniority of the plaintiff was overlooked because the Committee constituted by the Board did not recommend for his promotion and such Committee recommended for promotions of defendant Nos.4 to 24 and, therefore, they were promoted. Regarding this aspect of the case, the material is with the first defendant. On what grounds the promotion committee did not recommend the case of the plaintiff for promotion as against defendant Nos.4 to 24, no material is placed before the trial Court. That was the best material that could have been produced by the bank to record a finding in one way or the other. For not producing this material only, the trial Court drew an adverse inference against the first defendant, by observing as under:

".....So it is clear that the service register of the plaintiff and that of the personal files are in possession of the first defendant and the 1st defendant has not chosen to produce the same in order to show that the plaintiff was so had in his conduct and on that ground he was not given any promotion. When once the defendant is in the knowledge of the facts raised by him and in possession of the documents and failed to depose and produce respectively an adverse inference has to be drawn against it."

The lower appellate Court does not find fault with this observation of the trial Court. But, however, it non-suits the plaintiff on the ground that the plaintiff has failed to show that the Civil Court has jurisdiction to entertain the suit. I think it appropriate to quote the relevant part of the judgement on this issue as under:

"...He (i.e., DW1) also deposed at Page 11 of his deposition that under ABOSR marks given under each category would be maintained on his seniority, educational qualifications, performance etc., so also personal files of the individuals. It is also suggested to this witness that pending of disciplinary proceedings is bar for promotion. He also deposed that it is a bar for promotion. Thus as could be seen from the evidence of this witness that there must be some disciplinary proceedings by the year 1982-83 against the plaintiff-respondent and that must be the reason for overlooking the plaintiff, Whatever it may be the defendant did not place the record before the Court nor the plaintiff has taken any steps for production of the records. Hence, the lower Court draws an adverse inference and came to the conclusion that there was no evidence on record to show that the charges levelled against the plaintiff are so grave disentitling him for promotion over his juniors and that there is no evidence on record to show that the defendants 4 to 24 are more meritorious than the plaintiff so as to over ride the seniority."

In Paragraph 38 of the judgement of the lower appellate Court it is further observed as under:

".....But as observed by the lower Court there is no material to consider the relevant merits of the plaintiff vis-a-vis defendants who are juniors to him. Hence, under the circumstances, the lower Court was compelled to give a declaration drawing an adverse inference against the appellants."

Though these findings are in favour of the plaintiff yet in Paragraph No.39 of the judgment, the lower appellate Court by accepting the contention of the defendant-Bank and held that the Civil Court has no jurisdiction to grant the relief as prayed for by the plaintiff and consequently allowed the appeal and dismissed the suit of the plaintiff.

From a reading of the entire judgement of the lower appellate Court, I find that the plaintiffs suit has been dismissed not on merits, but on the ground of only maintainability. Hence, learned Counsel on both sides argued regarding the maintainability of the suit for the relief prayed for in the suit. From the reading of the judgement of the lower appellate Court, 1 do not find any statute being referred to specifically which oust the jurisdiction of the Civil Court regarding service matters. It is an established principle of law that the jurisdiction of the civil Court conferred u/s 9 of CPC would be barred only when such jurisdiction is ousted either by specific provision or by implication in any Act of the Parliament or State Legislature.

In cases where the statute specifically provides for the exclusion of the jurisdiction of the Civil Court, such cases do not pose any difficulty and such jurisdiction per se stands barred. But the cases in "Which certain statutory remedies are provided by way of an appeal or revision, such cases some times pose difficulty. For instance, under the Income Tax Act, a remedy is provided to the assessee, in case he is aggrieved, to approach an appellate authority. Dealing with such a situation, the Hon''ble Supreme Court in the decision reported in Raja Ram Kumar Bhargava (Dead) by Lrs. Vs. Union of India (UOI), , observed as under:

"The effect of clauses excluding the Civil Courts'' jurisdiction are considered in several pronouncements of the Judicial Committee and of this Court (See AIR 1940 105 (Privy Council); K.S. Venkataraman and Co. Vs. State of Madras, ; Dhulabhai and Others Vs. The State of Madhya Pradesh and Another, . The Premier Automobiles Ltd. Vs. Kamlekar Shantaram Wadke of Bombay and Others, . Generally speaking, the broad guiding considerations are that wherever a right, not pre-existing in common law, is created by a statute and that statute itself provided a machinery for the enforcement of the right, both the right and the remedy having been created uno flatu and a finality is intended to the result of the statutory proceedings, then, even in the absence of an exclusionary provision the civil Courts'' jurisdiction is impliedly barred. If, however, a right pre-existing in common law is recognised by the statute and a new statutory remedy for its enforcement provided, without expressly excluding the civil Courts jurisdiction, then both the common-law and the statutory remedies might become concurrent remedies leaving open an element of election to the persons of inherence. To what extent, and on what areas and under what circumstances and conditions, the civil Courts'' jurisdiction is preserved even where there is an express clause excluding their jurisdiction, are considered in Dhulabhai''s case."

From the above law of the Supreme Court it is clear that even by creating remedy under the Statute, the jurisdiction of the civil Court would not be barred, and in so far as the common law right is concerned, the jurisdiction of the civil Court continues to exist. The Supreme Court in the decision reported in State of Tamil Nadu Vs. Ramalinga Samigal Madam, , has further pointed out as under:

".....even where finality is accorded to the orders passed by the special Tribunal one will have to see whether such special Tribunal has powers to grant reliefs which civil Court would normally grant in a suit and if the answer is in the negative it would be difficult to imply or infer exclusion of civil Court''s jurisdiction."

From this law it follows that if the authorities created under the statute are empowered to grant the same relief what the civil Courts could grant u/s 9, then there would be exclusion of jurisdiction of civil Court by implication, and if there are other matters, which the civil Court alone could grant, but not the statutory authority, the civil Court continues to have the jurisdiction to deal with such matters u/s 9 of CPC. In the instant case, what is pleaded on behalf of the defendant-Bank was that the Bank fixed the fitment of the plaintiff and other defendants for the year 1982 and without challenging the said fitment by way of a representation, the plaintiff could not seek the present relief in the civil Court. This contention of the defendant-Bank overlooked the important fact that the plaintiff was not aggrieved by the fitment, therefore there was no necessity for him to challenge the same, by filing a representation or an appeal. The plaintiffs simple case was that his case for promotion has been wrongly refused while considering the case of his juniors for promotion. It is also not the case of the Bank that any appeal is provided under the rules or regulations, against the orders refusing the promotion. As per the service circulars applicable to the parties, the persons are entitled to be promoted to the next promotion cadre, provided they are eligible under the relevant rules and regulations. In such cases, if the authorities illegally refuse to promote a person, such person could approach a civil Court for remedy u/s 9 of CPC, unless such jurisdiction is barred under any other law. u/s 14(1)(b) of the Specific Relief Act, a person would not be entitled to enforce the specific performance of a contract "which is so defendant on the personal qualifications or volition of the parties". Interpreting this clause, the Courts in India have taken a consistent view that the personal service between two private persons as ''master'' and ''servant'' cannot be enforced in the civil Court, on the sound principles of common sense and common law, that no person can be compelled to take a services of a person whom he does not like. Likewise, a person cannot be compelled to work under a master against his will. In such circumstances, the Courts in India, instead of granting specific performance, in cases where the contract is proved, have awarded damages. This principle has undergone a change or modification by creating an exception to the general rule after the commencement of the Constitution. Interpreting the status of a Government servant, the Hon''ble Supreme Court in the decision reported in The State of Bihar Vs. Abdul Majid, , held that "the rule of English law that a civil servant cannot maintain a suit against the State or against the crown for the recovery of arrears of salary does not prevail in this country and that it has been negatived by the provisions of the Statute Law in India". In the said judgment, the Hon''ble Supreme Court has further observed as under:

"The CPC from 1859 right up to 1908 has prescribed the procedure for all kinds of suits and Section 60 and the provisions of Order 21 substantially stand the same as they were in 1859 and those provisions have received recognition in all the Government of India Acts that have been passed since the year 1858. The salary of its civil servants in the hands of the Crown has been made subject to the writ of civil Court. It can be seized in execution of a decree attached. It is thus difficult to see on what grounds the claim that the Crown cannot be sued for arrears of salary directly by the civil servant, though his creditor can take it, can be based or sustained. What could be claimed in England by a Petition of Right can be claimed in this country by ordinary process."

In the decision reported in Roshan Lal Tandon Vs. Union of India (UOI), , the Hon''ble Supreme Court further pointed out that it may be true that the origin of Government service is contractual. But once there is offer and acceptance, the Government servant acquires a status and his rights and obligations are no more determinable by consent of parties and the Government unilaterally may alter such statutory relationship. Thus the relationship between the master and servant was more than a mere contractual. In the decision reported in Executive Committee, U.P. Warehousing Corporation Vs. Chandra Kiran Tyagi, , the Hon''ble Supreme Court summarised the position as to the relationship between the master and servant as under:-

"20. From a review of the English decisions, referred to above, the position emerges as follows:

The law relating to master and servant is clear. A contract for personal service will not be enforced by an order for specific performance nor will it be open for a servant to refuse to accept the repudiation of a contract of service by his master and say that the contract has never been terminated. The remedy of the employee is a claim for damages for wrongful dismissal or for breach of contract. This is the normal rule and that was applied in Barbar''s case 1958-1 All ER 322 and Francis'' case 1962-3 All ER 633. But when a statutory status is given to an employee and there has been a violation of the provisions of the statute while terminating the services of such an employee, the latter will be eligible to get the relief of a declaration that the order is null and void and that he continues to be in service, as it will not then be a mere case of a master terminating the services of a servant. This was the position in Vine''s case, 1956-3 All ER 939".

From this it follows that the civil Court cannot grant a decree for specific performance of a contract of personal service between two private individuals and in case of breach of contract, damages are the only remedy that can be awarded. But in case of a master and servant relationship between a person and a statutory authority or a Government, such relationship being governed by the statutory conditions imposed, would no more be a matter of contract, but in such cases, a servant would be entitled to claim appropriate relief even before a civil Court in terms of such statutory conditions and regulations and such a suit would be maintainable, unless such a suit is barred by such statute or law. For instance, in the decision reported in Jitendra Nath Biswas Vs. M/s. Empire of India and Ceylon Tea Co. and Another, , the Hon''ble Supreme Court held that the relief of reinstatement can be granted to an employee under the Industrial Disputes Act and not by a civil Court, From these judgments of the Supreme Court, I can confidently draw a conclusion that for enforcing a statutory right, a servant can sue the master, unless for such enforcement of a statutory right special jurisdiction is created with certain authorities by excluding the jurisdiction of the civil Court either expressly or impliedly, notwithstanding the fact that a suit for specific performance of such personal contract between the master and servant is barred u/s 14(1)(b) of the Specific Relief Act. Therefore, it follows that the lower appellate Court was totally in error in holding that any suit regarding relationship between master and servant would be barred, without noticing the principle of law declared by the Supreme Court.

There is another aspect regarding the relationship between the master and servant. There are cases in which a specific performance is prayed, directing a particular master to take the plaintiff as a servant. On the basis that a person cannot be compelled to take the services of other person against his will, a specific performance may be refused by the civil Court. But there are cases in which a master may have taken the services of a particular servant willingly, but according to certain statutory conditions. There may be a condition that the servant is entitled to certain benefits under the Provident Fund Act, or Minimum Wages Act, etc. In case if the master does not extend the benefits as per the conditions of the contract, the servant can sue the master for declaration that such servant was entitled to provident Fund, gratuity or minimum wages under respective Acts. Thus, under the statutory rules and regulations or the law applicable to the parties, if the master illegally refuses the promotion to a person as against his juniors, then a suit in a civil Court would be maintainable. From reading of the judgment in the decision reported in State of Punjab and others Vs. Krishan Dayal Sharma, , I find that in that case, a Government servant filed a suit for declaration that he was entitled to promotion and other consequential benefits. That suit was decreed. While executing the decree, the executing Court granted interest on the amounts due to be payable to him, even though no interest was granted in the decree. In that case, the executing Court referring to number of decisions held that the Courts have power to grant interest on the amounts granted by the decree. On appeal, the Hon''ble Supreme Court set aside the judgment and order of the executing Court awarding such interest, on the principle that executing Court cannot go beyond the decree. From this judgment also it follows that a suit would be maintainable for declaration that the plaintiff was entitled to promotion. In the decision reported in R.C. Sharma Vs. Union of India (UOI) and Others, , the Hon''ble Supreme Court held that the validity of the departmental proceedings can be challenged in a civil suit if the plea of the plaintiff if accepted, would make such an order as one without jurisdiction or void and in such cases, the civil Court can grant appropriate relief. The Hon''ble Supreme Court in the decision reported in The Manager, Government Branch Press and Another Vs. D.B. Belliappa, , has rejected the contention of the petitioner that the respondent has voluntarily entered into the service of contract on the terms of employment offered to him and his service was purely temporary and was liable to be terminated at ''the will and pleasure'' of the appointing authority, and further held that such a concept is borrowed from the archaic common law concept that the employment was matter between the master and servant only. The Supreme Court further pointed out that such a concept in absolute form is not applicable to the Government servants, and even with regard to the private employment, much of it has passed into the fossils of time, by observing as under:

"To bring it in tune with vastly changed and changing socio-economic conditions and more so of the day, much of this old, antiquated and unjust doctrine has been eroded by judicial decisions and legislation, particularly in its application to persons in public employment, to whom the constitutional protection of Articles 14, 15, 16 and 311 is available. The argument is therefore overruled."

From this consistent law declared by the Supreme Court, it is clear that the present suit for declaration that the plaintiff was entitled to be promoted as against his juniors with effect from the date the juniors were promoted, is maintainable in the civil Court in view of the law declared by the Supreme Court in State of Mysore and Another Vs. Syed Mahmood and Others, , and in State of Uttar Pradesh v. Ram Gopal 1981 (2) SLR 3, that if without considering the eligible persons, if the juniors are promoted, it would result in the discrimination of the senior and in such circumstances, such senior would be entitled to an appropriate relief.

In view of the above legal position, in my considered opinion, the present civil suit is maintainable. Therefore, the finding of the lower appellate Court that the civil Court has no jurisdiction is liable to be set aside.

Now the last question would be whether the plaintiff would be entitled to the relief as prayed for.

The lower appellate Court did not advert to the merits of the case in view of its conclusion that the present suit itself was not maintainable. However, it has given a clear finding in Paragraph No.37 of its judgment that as per the seniority list vide Ex.A4, the plaintiff is senior to defendant 5 to 12 and 14 to 24. It rightly notice the Column No.6 in Ex.A4 containing the date of joining of the officers, including the defendants 4 to 24 under serial numbers 212 to 215, 268 to 272, 278, 279, 286 to 295. It also noticed that defendant No.13 joined service on 9-5-1977 and admittedly the plaintiff joined on 13-5-1977 and it also held that defendant No. 13 was senior to the plaintiff. Accordingly on the basis of Ex. A1, by concurring the findings recorded by the trial Court, the lower appellate Court held that "thus the evidence on record clearly establish the plaintiff is senior in length of service than defendants 5 to 12 and 14 to 24". The appellate Court also took notice of the contention of the defendant-Bank that for the purpose of promotion, seniority was not the sole criteria. But it observed that there was no material to consider the relevant merit of the plaintiff vis-a-vis defendants, who were admittedly juniors to the plaintiff. The appellate Court also confirmed the findings of the trial Court that for non-production of such material, adverse inference against the defendants was inevitable. But the appellate Court dismissed the suit on the ground of maintainability. But, according to me mere drawing an adverse inference without recording any conclusions in that behalf was "incomplete. The fact also remains that the issue whether the plaintiff was entitled to be promoted or not remained unanswered by the appellate Court. Having noticed this difficulty in this case, I thought of exercising jurisdiction of this Court under Order 41, Rule 27(1)(b) of CPC and directed the defendants to produce the relevant records on the basis of which the relative merit of the plaintiff and defendants are considered by the Departmental Promotion Committee of the Bank and accordingly, I passed the order dated 17-6-1999 as under:

"The defendants 1 to 3 are hereby directed to produce the proceedings of the Promotion Committee of the year 1982 which considered the case for promotion of the defendants 4 to 24 and also all the relevant circulars applicable to the facts of the case as on the date of the defendants 4 to 24 were promoted by negating the case of the plaintiff''.

From the above order it is clear that I directed the defendants 1 to 3 to produce the proceedings of the Promotion Committee of the year 1982, by which the promotion of the plaintiff and defendants 4 to 24 was considered. I also directed the defendants 1 to 3 to produce the relevant circulars applicable as on the date the defendants 4 to 24 were promoted as against the plaintiff, who was admittedly senior to these defendants, except defendant No.13. The Counsel for the defendant-Bank took time to produce the same and after taking few adjournments, the Bank filed certain documents in CMPNo.15452 of 1999. From the proceedings sheet of this Court dated 29-7-1999, it is clear that these documents were marked with the consent of both the parties as Exs.C1 to C13 and they were received as additional evidence. At this stage itself I must notice that the defendant-Bank did not produce the proceedings of the Promotion Committee of the year 1982, nor it produced the relevant circulars applicable to the facts of this case, as on the date the defendants 4 to 24 were promoted as against the plaintiff, in pursuance of the said direction of this Court dated 17-6-1999. In the affidavit, no explanation is offered as to why those documents are not produced before this Court inspite of a positive direction. When the same was put to the Counsel for the Bank, he orally submitted that those proceedings and circulars were misplaced and were not traceable. Along with the CMP, certain charge sheets vide Exs.C1 and C2 are produced and the punishment order dated 21-6-1991 is produced at Ex.C3 and the order passed by the appellate authority by dismissing the appeal of the plaintiff is filed at Ex.C4. Ex.C5 shows that even plaintiffs revision petition was dismissed. Exs.C6 to C13 are the promotion orders given to some of the defendants stating that vide Chairman''s letter dated 29-7-1982 and 14-12-1982, they were promoted to the Middle Management Grade III Scale Officers and the actual promotion orders were dated 23-9-1983. Referring to these documents, in the affidavit filed in the said CMP, at Paragraph No.6 the Bank has stated as under:

"The appellant Sri V. Ramakrishna was not obviously found fit for promotion as there were charges and there were Departmental inquiries/charges pending against him at the time, which ultimately resulted in punishment. Hence, I pray the Hon''ble Court that the above documents may be taken as additional evidence to prove the fact that the promotion of Sri V. Ramakrishna was not found feasible as he was facing disciplinary proceedings for charges framed by the management and, therefore, he could not have been promoted at that time of promotion of the other officers in August, 1983. I pray the Hon''ble Court that the above documents may please be taken as additional evidence in the interests of justice."

Basing on this paragraph, the Counsel for the Bank submitted that obviously the appellant was not found fit for promotion in view of the departmental enquiries, which ultimately resulted in the punishment From this it follows that the case of the plaintiff was not considered only in view of the fact that the plaintiff was facing departmental proceedings and accordingly, some of the defendants have been promoted in the month of August, 1983. Whatever may be the submission of the Counsel for the Bank, but one thing is certain that the Bank has failed to produce the proceedings and the relevant circulars on the basis of which the defendants 4 to 24 were promoted. Having produced the documents vide Exs.C1 to C13, it was not difficult for the Bank to produce the documents as directed by this Court. These are also the documents of the year 1982-83. From this it follows that in all probability the Bank cannot justify its stand on the basis of the proceedings of the Promotion Committee and the circulars that were in force as on the date of the impugned promotions of the defendants 4 to 24. In these circumstances, this Court also is compelled to draw an adverse inference against them by holding that the proceedings of the promotion committee and the circulars that were in force at that time, were in favour of the plaintiff and the plaintiff was entitled to be promoted, but for the departmental proceedings pending against him, he was not promoted.

The plaintiff has brought to my notice that against the charge sheets dated 1-9-1982 and 7-9-1982, in pursuance of which the plaintiff was awarded a punishment by way of reduction of two steps in the time scale for two years vide orders Exs.C3 to C5, he has filed a writ petition before this Court in Writ Petition No.5797 of 1992 and the said writ petition is pending. The fact that the said writ petition is pending is accepted by the Counsel appearing for the Bank. However, he submitted that subsequently there was another charge sheet against the plaintiff in which he was imposed a punishment of dismissal. But the said proceedings have been quashed by the High Court in Writ Petition Nos.15020 and 15021 of 1986 vide order dated 7-8-1987. The learned Counsel for the plaintiff filed a xerox copy of the said judgment of this Court dated 7-8-1987 passed in Writ Petition Nos. 15020 and 15021 of 1986. For a limited purpose of looking into history of this case, I marked it as Ex.XI. On the basis of this material, it is clear the proceedings initiated against the plaintiff in the year 1982 have not yet reached the finality, but they are challenged in the writ petition is pending before this Court in Writ Petition No.5797 of 1992. Except the proceedings pending in the said writ petition, it is not brought to my notice that any other proceedings are pending against the plaintiff. As contended by the Counsel for the Bank, the seniority of the plaintiff has been overlooked and the defendants 4 to 24 have been promoted only because of the pendency of these proceedings and for no other reason. Though DW1 stated in his evidence that seniority alone was not the criteria, but as I have already stated above, it is not brought to my notice any other factor other than the pendency of departmental proceedings. As conceded in the affidavit filed in support of CMP No. 15452 of 1999, the seniority of the plaintiff has been overlooked only because of the pendency of the proceedings against him, which are still awaiting the final judgment of this Court in Writ Petition No.5797 of 1992. From this it follows that the plaintiff was otherwise entitled to be promoted as against the defendants 4 to 24 (except defendant No. 13) but for the pendency of the departmental proceedings in Writ Petition No.5797 of 1992. In these circumstances, in my opinion, as long as the departmental proceedings are pending in the said writ petition, I cannot find fault with the action of the Bank in not promoting the plaintiff. Therefore, as on today there cannot be any immediate direction to the defendants 1 to 3 to promote the plaintiff as against defendants 4 to 24, (except defendant No.13). Suppose if the plaintiff succeeds in the writ petition in Writ Petition No.5797 of 1992, and consequently the departmental proceedings are quashed, then the only factor that weighed with the authority for not promoting the plaintiff to the next cadre of MM-III would not survive and the plaintiff would be entitled to be promoted to MM-III as against defendants 4 to 24 (except defendant No.13, who was admittedly senior to the plaintiff as per the seniority list Ex.A4). In case the writ petition is dismissed, thereby the punishment of reduction of two steps in time scale is confirmed, then the action of the defendants I to 3 in not promoting the plaintiff as against defendants 4 to 24 could not be found fault with, unless he ultimately succeeds in those departmental proceedings, and in case if he ultimately succeeds, he would be entitled to a promotion over and above defendants 4 to 12 and 14 to 24. In these circumstances, dismissing the appeal and dismissing the suit with the facts as on today would unnecessarily drive the plaintiff to another suit and wait for the finality for another fifteen years to come and that would cause hardship to him. In these circumstances, I think it appropriate to direct the defendant-Bank to promote the plaintiff-appellant as against defendants 4 to 24, excepting defendant No.13, in case the plaintiff succeed in Writ Petition No.5797 of 1992 by getting the proceedings quashed against him. Accordingly, I pass the order as under:

This appeal is allowed. The judgment and decree of the appellate Court are set aside by restoring that of the trial Court with a further direction that the judgment and decree of the trial Court shall be implemented if the plaintiff succeeds in Writ Petition No.5797 of 1992 and in case he fails to succeed in that writ petition, it shall be taken that the decree of the trial Court is deemed to have been set aside and the judgment and decree of the appellate Court are confirmed. In the circumstances of the case, the parties shall bear their own costs.